It was Brandeis Day for the Louisville Courier-Journal yesterday (November 8th.) In anticipation of his birthday coming up this Friday, they ran three articles about him. First off, Mel Urofsky excerpted material from his new biography that featured Brandeis’ connection with Louisville. Then there was a book review of the Urofsky biography by Laura Rothstein. Since Laura is a professor (and former Dean) here at the Louis D. Brandeis School of Law, she emphasized the parts of the book that discussed how Brandeis used his positions as lawyer and judge to educate people about the law and their responsibilities as citizens.
The third article was particularly interesting. It was written by staff photographer Sam Upshaw, Jr. and it outlined a number of similarities between Brandeis and Obama. There are, of course, the superficial ones: an intelligent wife/helpmate, two daughters, a degree from Harvard Law School, etc. But there are also the careers as community activists, vilification from large portions of society and battles with the insurance industry (although Brandeis’ struggles were with the life insurance companies and not health insurance as Mr. Upshaw states.) No wonder Brandeis’ grandchildren endorsed Obama in the last election.
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I feel like I’ve been neglecting Harlan in this blog lately. There’s actually a technological reason for that. When I started this blog I created 2 Westclip searches: one for Brandeis and another for Harlan. My email inbox soon started filling up with notices about Brandeis. I wasn’t particularly disturbed by the fact that I wasn’t getting any messages about Harlan; I just assumed nobody was doing any research on him. Then the other day while logged onto West I decided to take another look at my Westclip searches. Sure enough, I had misconfigured the Harlan search. Once I corrected the search, a number of articles showed up. Most of them were either to old or marginal to hold my interest, but three recent ones stood out. Interestingly, they all turned out to be related to Clarence Thomas and Harlan’s famous line about the color-blind constitution from his Plessy dissent.
The first was a speech given Berkeley professor Goodwin Liu, which unfortunately is not currently available online: “The First Justice Harlan” (96 California Law Review 1383). Liu starts by noting the irony that Harlan’s dissent was quoted by both the majority and dissenting justices in Parents Involved in Community Schools v. Seattle School District No. 1. Liu uses that apparent contradiction as an excuse to delve into the history of Harlan’s life and the eternal mystery of how the author of the dissents in Plessy and the Civil Rights Cases could also write the majority opinion in Cumming v. Richmond County Board of Education and concur in Fong Yue Ting V. US and the Chinese Exclusion Cases.
Recent Duke graduate Hannah L. Weiner also noted Clarence Thomas’ quoting Harlan in Parents Involved in Community Schools and has written two articles about it. The first, “The Next ‘Great Dissenter’?: How Clarence Thomas Is Using the Words and Principles of John Marshall Harlan to Craft a New Era of Civil Rights” (58 Duke Law Journal 139) discusses how Thomas has latched onto the phrase “color-blind constitution” and used it almost literally in a number of his opinions to support his view that preferential treatment of any race by the government is unconstitutional. In “The Subordinated Meaning of ‘Color-Blind’: How John Marshall Harlan’s Words Have Been Erroneously Commandeered” (11 Journal of Social Change 45 — not currently available online), Ms. Weiner takes a look at the phrase itself and how it is used by two different schools of legal thought: anti-subordination and anti-classification. The anti-subordinationists believe that the Fourteenth Amendment was created to protect minority groups from the majority while the anti-classificationists (like Justice Thomas) believe that the Fourteenth Amendment forbids any special treatment of minorities. Ms. Weiner then puts the phrase in perspective of Harlan’s life and judicial opinion and come to the conclusion that Harlan was an anti-subordinationist.
There is another, rather tenuous, connection between Harlan and Parents Involved in Community Schools. While the name of the decision reflects the case that came from Seattle, that case was combined with another case that originated here in Louisville, Kentucky, which is also where Harlan practiced law for many years. The law library here at the University of Louisville received a copy of the briefs in Parents Involved in Community Schools and we have them bound and waiting for any who want to see them.
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Mel Urofsky visited Brandeis University on September 29 and gave a speech about his new biography Louis D. Brandeis: A Life. He doesn’t read from the book, but he does do a good job covering all of the themes of the book, while throwing in some good anecdotes. The speech is included in its entirety (with Q&A) online. It makes for a pretty good introduction to the book.
Now if only someone can raise the money to bring him to Louisville.
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Brandeis and Insurance Reform
I just finished the chapter in Melvin Urofsky’s biography of Brandeis on Brandeis’ creation of Savings Bank Life Insurance. What I thought would be a dry chapter instead had a number of interesting parallels to today’s fight over health insurance. Near the start of the 20th century abuses in the life insurance industry were exposed in the press, which spurred activists to reform the industry. What particularly appalled Brandeis was the industry’s exploitation of the poor and working class. In a time of one income families, insurance agents played upon fears of the death of the breadwinner, to get people to buy insurance that often ended up being more expensive than the insurance bought by the upper classes. Also, because of the vagaries of employment at the time, many families had difficulty making regular payments, which the insurance companies would use as an excuse to cancel the policies and keep all the premiums made.
Brandeis’ solution (in Massachusetts at least) to these abuses was create a state wide system where the poor could buy insurance from local banks. Of course, key to the plan’s implementation was getting the idea passed by the state legislature. Naturally, insurance companies did not like the idea of a rival system and spent vast sums of money trying to defeat the measure. In their hysteria, they accused Brandeis of being a socialist (sound familiar?) which is ironic because one of Brandeis’ hopes was that the competition from the new system would force the companies to offer fairer and more inexpensive policies — which is exactly what happened.
There is another interesting parallel in this story and one that politicians pushing for heath insurance reform could learn from. Once Brandeis came up with the idea, he did not immediately start trying to get the idea passed by the legislature. Instead he started a pr campaign to get the public enthused about the idea, and then had them start lobbying the politicians. It’s worth quoting the book directly:
“Even if [Brandeis] could have secured passage of the bill immediately, it would not, he believed, be the right way to do it. It was more important to get the education of ‘those persons who are now savings bank trustees and the wage earners as to the inequity of the present system and the necessity of developing insurance on savings banks lines, than it is to get the necessary legislation. If we should get the tomorrow the necessary legislation, without having achieved that process of education, we could not make a practical working success of the plan.’ “
In other words, he came up with the plan first, marshaled his support and then brought it all down on the politicians. If only Team Obama would have taken a play from the Brandeis playbook.
BTW, the Savings Bank Life Insurance in Massachusetts is still going strong. They recently celebrated their 100th anniversary by producing the documentary on Brandeis that I have blogged about earlier.
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Just a reminder that Mel Urofsky’s new biography Louis D. Brandeis: A Life is released today. The New York Times ran a favorable review of it this last Sunday.
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Brandeis gets his own stamp
According to the Legal Times blog, Brandeis will soon be joining the august company of Abraham Lincoln, Edgar Allen Poe, Richard Wright, Gary Cooper, Elvis Presley and Bart Simpson. Yes, that’s right: he is getting his own postage stamp. Actually the USPS is releasing stamps for 4 justices at once: Brandeis himself, Brandeis’ protege Felix Frankfurter (who the USPS describes as “enigmatic and controversial”), Joseph Story and William J. Brennan, Jr. There will be an dedication ceremony at the Supreme Court on September 22, and the stamps will presumably be available shortly thereafter.
I really like the look of the stamp. They took the photo that Warhol based his Brandeis portrait on and pasted on top of a tasteful background. It’s certainly much better looking than the old style faux-engraving style that was so prevalent on stamps a couple decades ago.
Picture of Supreme Court justice stamps.
The USPS site gives this mini-biography of Brandeis:
“Louis D. Brandeis was the associate justice most responsible for helping the Supreme Court shape the tools it needed to interpret the Constitution in light of the sociological and economic conditions of the 20th century. “If we would guide by the light of reason,” he once exhorted his colleagues, “we must let our minds be bold.” A progressive and champion of reform, Brandeis devoted his life to social justice. He defended the right of every citizen to speak freely, and his groundbreaking conception of the right to privacy continues to impact legal thought today.”
You can read the other biographies as well as see the other stamps released this year by going here.
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More Rarities Found in Library
More sping cleaning, more rarities:
While going through our collection of uncataloged antiques, I found 4 previously unknown (at least to the current staff) books owned John Marshall Harlan. Here’s a screenshot of the title page of one of them:
John Marshall Harlan's opy of the Law of Infancy
(I love the subject matter of some of these 19th century treatises. In addition to the Law of Infancy, I’ve also found the Law of Telegraphs and the Law of Master and Servant. I’m still waiting to stumble on the Law of Street Cars.)
This particular book is in horrible shape. It has no front cover, the back cover is barely hanging on, the spine is broken in a number of places, and the paper is too brittle to rebind. The book is nearly unusable, but since it’s signed by Harlan, we need to preserve what’s left. It’s now more of a relic than a book.
Also, earlier I had posted about an article Kurt Metzmeier and I had wrote about the books owned by Harlan’s father, James Harlan. There was a long itemized list of the books, most of which ended up in his son’s hands. We were thrilled when we found one of those books in our collection (Paley’s Treatise on the Law of Principal and Agent.) Now I have found 3 volumes out of a 4 volume set owned by James Harlan: Elliott’s Debates in the Several State Convention on the Federal Constitution. The only catch is that this book wasn’t on the itemized list after his death. Did he give away before his death? Or did his sons neglect to list it for other reasons? And if that’s the case, then how many other James Harlan books are floating around out there?
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The things you find when cleaning house…
The Law Library here at the University of Louisville has had a collection of donated books that have sat neglected, unloved, and worst of all, uncataloged in our attic for who knows how many decades. This summer, I started going through the books and officially adding them to our collection. There have been interesting finds (such as books published back in the 1600’s) that I will probably note in later entries in this blog. Almost as interesting as the books have been what I’ve found inserted in the books: old tests (a number of the books were donated by former faculty members), printed advertisements, business cards, etc. But hands down the most interesting item has been this: a handwritten letter from Supreme Court justice to Benjamin Washer.
The content of the letter isn’t all that extraordinary. In 1920 (2 years before he ascended to the Court), Butler was apparently traveling through the state and he sent this letter to entice this letter to entice Washer to meet up with him in Frankfort. (Ben Washer was a Louisville lawyer and sometimes judge, who was also professor and Dean at the Jefferson School of Law–a night law school in Louisville that later merged with the UofL Law School.) Apparently, there was a boarding problem which Pierce tried to solve by offering to share his bed with Butler. As one can see by reading the attached copy of the letter, Pierce helpfully drew a diagram of the bed and indicated that there was a nice view out the window from the bed. It is unknown whether Washer took Pierce up on his offer.
Other than what some people will make out about the sleeping arrangements, it is not a particularly significant letter. However, as a handwritten, personal Pierce Butler letter, it is fairly rare. Many Supreme Court justices (such as Brandeis and Harlan) kept most of their papers and made them available for posterity. However, there does not seem to much available from Butler. The Minnesota Historical Society seems to have a small collection of his pre-Supreme Court papers. But other than a few letters found in a few other collections that seems to be it, so any new letters that turn up are significant.
I can’t wait to see what else I can find in these books.
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Every time there are confirmation hearings for a new Supreme Court justice, there is renewed interest (at least on the media’s part) in the confirmation hearings of Brandeis. The Brandeis nomination set the standard for contentious confirmation hearings. Brandeis was nominated by Wilson on January 28, 1916. Brandeis was not confirmed until June 1, over 5 months later.
If the Sotomayor hearings aren’t giving you enough excitement to fill your Supreme Court politics cravings, the Wall Street Journal has reprinted 4 of their articles from the Brandeis hearings. Look for the links in the second column, about a quarter of the way down the page. Enjoy.
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Mel Urofsky is unquestionably the premiere Brandeis scholar today. Back in the 1960’s he and David Levy started publishing Brandeis’ correspondence in what became a 7 volume set. Since then he has published numerous articles and books on Zionism, progressivism and other causes Brandeis was involved with. During that time, he has repeatedly visited the collection here at the University of Louisville (as well as the collections at Harvard and Brandeis University.) He worked with Brandeis’ daughter, Elizabeth Raushenbush as well as his surviving grandchildren. He has taken those decades of research, as well as access to previously unavailable materials to produce a new biography entitled Louis D. Brandeis: A Life, to be published by Pantheon Books on September 22, 2009. As the publisher’s pr says, not only is it the first biography of Brandeis in 25 years, it will in all likelihood be the definitive one.
Check out the promo page for it at the Random House site.
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